Just when I thought our Republican Legislature might be ready to show some moral fiber…
Top South Dakota lawmakers announced a proposal on Tuesday to delay evaluating whether the state’s attorney general should be impeached until the conclusion of the criminal case against him for hitting and killing a man with his car.
House Speaker Spencer Gosch, a Republican, released a plan he will present to a House committee on Wednesday, arguing that a delay was necessary in light of a judge’s order last week that halted Gov. Kristi Noem and government officials from releasing evidence in the investigation….
Gosch said public proceedings would be difficult, given the judge’s order that state members could not release evidence, and he wanted to make sure any hearings were “fair and transparent.”
“It’s best that arguably these premature articles that were filed be held off until the judicial system is able to do its job,” he said.
Gosch’s proposal amounted to a step back from the impeachment proceedings after the governor and some lawmakers had used nearly every available means to get Ravnsborg to resign last week [Stephen Groves, “South Dakota House Speaker Plans to Delay AG Impeachment,” AP, 2021.03.02].
Speaker Gosch proposes erasing the articles of impeachment from House Resolution 7001 and replacing them with a statement that the House will maybe consider impeaching Ravnsborg “after a conviction, plea of guilty or nolo contendere, or acquittal in case number 34MAG21-0001, State v. Jason Ravnsborg.”
Gee, I guess our Legislature will cower before the Judicial Branch as feebly as it cowers before the Executive Branch.
Ravnsborg has admitted killing a man. We have the evidence that Ravnsborg lied to police about looking at his phone in the minutes before crashing into the plainly visible Joe Boever on Highway 14. Even with the vote of no confidence from three statewide law enforcement organizations, Ravnsborg has demonstrated his unwillingness to step aside to restore confidence and normal operations to the office of the Attorney General. What more information does the House need to impeach Jason Ravnsborg and suspend him from the duties is cannot perform? What more information does the Senate need to remove this menace from public office?
I understand the concern Speaker Gosch has that Judge John Brown’s gag order prevents legislators, like any other member of state government, from making public anything related to the Ravnsborg case. However, I maintain that the Judiciary cannot block the Legislature’s exercise of its proper constitutional authority. Article 3 Section 11 says legislators may not be punished for things they say during Session unless they commit treason or felony or breach the peace. A judge cannot issue a gag order that prevents the proposal and consideration of any measure in the Legislature. Article 16, on impeachment, says nothing about a role for the Judiciary other than the provision (Section 2) that the presiding judge of the Supreme Court preside at the Senate trial of the Governor or Lieutenant Governor. Article 16 does not allow for any other trial, criminal or civil, to stop the impeachment process; Section 3 envisions that an impeached officer may face indictment, trial, judgment, and says impeachment shall have no effect on such criminal or civil liability.
The Constitution thus makes clear that impeachment is separate from judiciary activity. The Legislature’s authority to impeach and try state and judicial officers does and should stand independent from and unaffected by actions and orders of the Judiciary.
Remember that judicial officers are also subject to impeachment. If Gosch’s theory that a court order can stop impeachment held water, a corrupt judiciary could insulate itself from accountability to the Legislature by issuing gag orders preventing Legislative action on impeachment. Officers subject to impeachment cannot have the power to moot impeachment.
Now I recognize that the separation powers cuts both ways: the Judiciary could argue that the Legislature can’t abridge the courts’ ability to conduct fair trails and control the release of evidence. But the defense motion from Ravnsborg seeking the gag order focused on the actions of Governor Kristi Noem and the Department of Public Safety, members of the Executive Branch. I’m prepared to argue, as Team Noem has, that their release of evidence from Ravnsborg’s case is legal and justified by public interest, so Judge Brown’s gag order is already on questionable legal ground. But Judge Brown overreaches in applying his gag order to every member of state government, including, in the interpretation of the timid Speaker Gosch, members of the Legislative Branch.
The Executive Branch has no constitutional power to impeach. The Legislative Branch has such power. The Judiciary Branch cannot hinder that power and prevent the Legislature from holding its own investigation, calling its own witnesses, and doing its duty to remove a criminal and disgraced Attorney General from office.